State of Louisiana v. Louis Dan Hargrove III

Judgment rendered December 15 2021.
Application for rehearing may be filed
within the delay allowed by Art. 922,
La. C. Cr. P.

No. 54,208-KH

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

STATE OF LOUISIANA Respondent

versus

LOUIS DAN HARGROVE III Applicant

*****

On Application for Writs from the
Twenty-Sixth Judicial District Court for the
Parish of Webster, Louisiana
Trial Court No. 68930

Honorable Robert Lane Pittard, Judge

*****

LOUIS DAN HARGROVE III Pro Se

J. SCHUYLER MARVIN Counsel for Respondent
District Attorney

JOHN M. LAWRENCE
HUGO A. HOLLAND, JR.
Assistant District Attorneys

*****

Before GARRETT, STONE, and HUNTER, JJ.

HUNTER, J., dissents with written reasons.

GARRETT, J.

The defendant/applicant, Louis Dan Hargrove, III, seeks supervisory

review of the trial court’s denial of his motion to amend or modify his

sentence. The writ was granted to docket.1 For the reasons expressed

below, we recall the writ as improvidently granted and deny the writ

application.

FACTS AND PROCEDURAL HISTORY

In 2001, Hargrove and his co-defendant, Rufus Hampton, III,

committed an armed robbery during which Hampton pistol-whipped the

victim, who was not resisting, and took his cash and credit cards while

Hargrove drove the getaway car. Minutes later, they were seen on

surveillance video using one of the victim’s credit cards at a local Wal-Mart

store.2 Following a jury trial, they were convicted as charged of the offenses

of armed robbery, conspiracy to commit armed robbery, and aggravated

second degree battery. The trial court imposed upon each defendant

consecutive sentences totaling 90 years at hard labor (50 years for armed

robbery, 25 years for conspiracy to commit armed robbery, and 15 years for

aggravated second degree battery, with the sentences for the first two

offenses to be served without benefit of probation, parole, or suspension of

sentence). Their convictions and sentences were affirmed. State v.

Hampton, 38,017 (La. App. 2 Cir. 1/28/04), 865 So. 2d 284, writs denied,

1
The author of this opinion dissented from granting the writ application to docket
on the basis that Hargrove “failed to include a copy of the trial court ruling in his
application to this court, as required by U.R.C.A. 4-5(C). Inasmuch as this court does not
even have the benefit of the trial court ruling of which the defendant complains, this writ
should not be considered, much less granted.”
2
In the motion to amend or modify sentence currently before us, Hargrove
repeatedly described this brutal crime as “an accident” and asserted that “there was no
intent, or even ill will toward anyone.”

04-0834 (La. 3/11/05), 896 So. 2d 57, and 04-2380 (La. 6/3/05), 903 So. 2d

452.

The state filed a habitual offender bill of information against

Hargrove, asserting that he was a third felony offender with prior

convictions of simple robbery and possession of marijuana with intent to

distribute. Following a hearing, the trial court adjudicated him a third felony

offender, vacated his original armed robbery sentence, and resentenced him

to 150 years at hard labor without benefits for that offense. On appeal, this

court vacated Hargrove’s adjudication as a third felony offender and the

resulting 150-year sentence; it remanded the case for resentencing of

Hargrove as a second-felony offender. State v. Hargrove, 39,045 (La. App.

2 Cir. 10/27/04), 886 So. 2d 1192. On January 10, 2005, Hargrove was

sentenced on remand as a second felony offender to 100 years at hard labor

without benefits on the armed robbery conviction. On January 27, 2005, the

defendant filed a pro se motion for reconsideration of the sentence and

appointment of counsel in which he asserted that he was resentenced

“without the aid of counsel or a hearing on the vacated sentence or

adjudication.”3 On April 11, 2005, the trial court issued a written order in

which it denied the motion for reconsideration “as not being supported by

the record or the evidence.” The motion for appointment of counsel was

also denied. On appeal, Hargrove’s sentence was affirmed on the basis that

it was not excessive. State v. Hargrove, 40,427 (La. App. 2 Cir. 3/8/06), 924

So. 2d 477, writ denied, 06-1380 (La. 12/8/06), 943 So. 2d 1059.

3
The minutes and the resentencing transcript state that Hargrove’s counsel
appeared in court with the defendant for the resentencing hearing on January 10, 2005.
2

Hargrove sought federal habeas corpus relief. In 2010, Hargrove’s

conspiracy conviction and his 25-year sentence for that conviction were

vacated by a federal district court. Hargrove v. Warden La. State

Penitentiary, No. 07-CV-1419, 2010 WL 2545197 (W.D. La. Apr. 9, 2010),

report and recommendation adopted, No. CIV.A., 2010 WL 2545481 (W.D.

La. June 18, 2010).4

Thereafter, Hargrove unsuccessfully challenged his habitual offender

sentence as illegal for various reasons in several pro se motions. Three

resulting writ applications were denied by this court. State ex rel. Hargrove

v. State, 46,642 (La. App. 2 Cir. 5/19/11), writ denied, 11-1385 (La.

3/23/12), 84 So. 3d 571; State ex rel. Hargrove v. State, 48,794 (La. App. 2

Cir. 9/12/13); and State ex rel. Hargrove v. State, 52,702 (La. App. 2 Cir.

2/7/19).

In January 2021, Hargrove filed a motion to amend or modify

sentence in which he claimed that La. C. Cr. P. art. 822(A) gave the trial

court the option of resentencing him at any time. In support of his argument,

he cited State v. Dorthey, 623 So. 2d 1276 (La. 1993), and State v. Krogh,

630 So. 2d 284 (La. App. 4 Cir. 1993), for the proposition that higher courts

deem that a judge has the authorization to review a sentence and resentence

a defendant outside of the sentencing guidelines if the circumstances

warrant. However, he also included a quote from State v. Gedric, 99-1213

(La. App. 1 Cir. 6/3/99), 741 So. 2d 849, writ denied, 99-1830 (La. 11/5/99),

751 So. 2d 239, which included the following: “By its clear language,

4
Hargrove apparently raised similar issues in a state post-conviction relief
(“PCR”) application. His writ application to this court pertaining to that PCR application
was denied. State v. Hargrove, 41,675 (La. App. 2 Cir. 8/3/06), writ denied, 06-2250
(La. 5/18/07), 957 So. 2d 146.

3

article 822 does not provide authority for a court to amend or modify a

sentence.”

On April 5, 2021, the trial court issued a written ruling in which it

denied Hargrove’s motion to amend or modify sentence. The court ruled as

follows:

For felony cases in which a defendant has been sentenced
to imprisonment at hard labor, there is no authorization for the
court to amend the sentence after execution of the sentence has
begun (La. C. Cr. P. Art. 881) unless the court grants a timely
filed motion to reconsider sentence. A motion to reconsider
sentence in felony cases must be filed within thirty days after
imposition of sentence unless the court at sentencing sets a
longer time. La. C. Cr. P. Art. 881.1(A). An “out-of-time”
motion to reconsider sentence is not contemplated by the Code
of Criminal Procedure nor allowed by the jurisprudence. State
of Louisiana v. Gedric, 741 So. 2d 849, 852 (La. App. 1 Cir.
1999).

As Petitioner’s pro se Motion for Reconsideration of
Sentence was filed outside of the thirty (30) day time period,
Petitioner’s motion is DENIED.

In July 2021, Hargrove filed a writ application with our court.

Although the table of contents included an appendix listing the motion to

amend or modify sentence and the trial court judgment, no such documents

were included with the application. Consequently, the writ did not comply

with U.R.C.A. 4-5. Nonetheless, two of the three writ panel members voted

to grant the writ to docket. We now have before us the motion filed by

Hargrove below and the trial court’s ruling denying the motion. As

explained below, under the current statutory scheme and jurisprudence, the

trial court properly denied Hargrove’s motion. This writ was improvidently

granted.

4

LAW

In relevant part, La. C. Cr. P. art. 822 provides:

A. (1) Should the court on its own motion or on motion of the
defendant consider setting aside a guilty verdict or a plea of
guilty or, after the sentence is imposed, consider amending or
modifying the sentence imposed, the district attorney shall be
notified and the motion shall be tried contradictorily with the
district attorney unless the district attorney waives such
contradictory hearing.

(2) Such motions include but are not limited to motions for a
new trial, motions in arrest of judgment, motions for
amendment, modification, or reconsideration of sentence, and
motions for modification of conditions of probation or
termination of probation.
...

C. Each motion to set aside a guilty verdict or plea of guilty and
each motion to amend or modify a sentence imposed shall be
filed, considered, and decided in compliance with Code of
Criminal Procedure Articles 881 and 881.1.5

La. C. Cr. P. art. 881 states, in pertinent part:

A. Although the sentence imposed is legal in every respect, the
court may amend or change the sentence, within the legal limits
of its discretion, prior to the beginning of execution of the
sentence.

B. (1) After commencement of execution of sentence, in felony
cases in which the defendant has been sentenced to
imprisonment without hard labor and in misdemeanor cases, the
sentencing judge may reduce the sentence or may amend the
sentence to place the defendant on supervised probation.
Should the court consider any motion amending or changing the
sentence imposed, either prior to or after execution of the
sentence, the district attorney shall be notified and, if such
motion is filed by the defendant, it shall be tried contradictorily
with the district attorney, unless the district attorney waives
such contradictory hearing.

(2) Such motions include but are not limited to motions for a
new trial, motions in arrest of judgment, motions for
amendment, modification, or reconsideration of sentence, and

5
Section (C) was added in 2001 “to provide that the amendment or modification
of a criminal sentence shall be conducted pursuant to procedures contained in present
law.” See Acts 2001, No. 937.
5

motions for modification of conditions of probation or
termination of probation.

In pertinent part, La. C. Cr. P. art. 881.1 provides:

A. (1) In felony cases, within thirty days following the
imposition of sentence or within such longer period as the trial
court may set at sentence, the state or the defendant may make
or file a motion to reconsider sentence.

In State v. Gedric, supra, a trial court amended a legal felony sentence

of imprisonment at hard labor after execution of the sentence had begun,

contending that La. C. Cr. P. art. 822 gave it that authority. The appellate

court reversed the trial court, finding that, “[b]y its clear language, article

822 does not provide authority for a court to amend or modify a sentence.”

The appellate court conducted a detailed review of the statutory scheme. It

noted that, while a trial court may correct an illegal sentence at any time

pursuant to La. C. Cr. P. art. 882(A) and La. C. Cr. P. art. 881.5, if a

sentence is legal, La. C. Cr. P. art. 881(A) provides that the court “may

amend or change the sentence, within the legal limits of its discretion, prior

to the beginning of execution of the sentence.” Under La. C. Cr. P. art.

881(B), after commencement of execution of sentence, in felony cases in

which the defendant has been sentenced to imprisonment without hard labor,

the sentencing judge may reduce the sentence or may amend the sentence to

place the defendant on supervised probation. However, for felony cases in

which the defendant has been sentenced to imprisonment at hard labor, there

is no authorization for the court to amend the sentence after execution of the

sentence has begun unless the court grants a timely filed motion to

reconsider sentence. A motion to reconsider sentence must be filed within

30 days after imposition of sentence (unless the court at sentencing set a

longer time). La. C. Cr. P. art. 881.1(A)(1). The appellate court observed
6

that an “out-of-time” motion to reconsider sentence is not contemplated by

the Code of Criminal Procedure or allowed by the jurisprudence.

Furthermore, La. C. Cr. P. art. 822 does not purport to modify

jurisprudential or statutory authority for consideration of a motion to

reconsider sentence. The appellate court concluded that the statutory

framework prevents a judge from becoming a “one man pardon board.” See

La. C. Cr. P. art. 881, comment (a).

We find that Gedric is directly on point for the matter before us and

correctly interprets the current statutory framework. Hargrove was

resentenced to a legal hard labor sentence, which he began serving many

years ago. The record reveals that, after the defendant was resentenced, he

filed a timely motion to reconsider which was denied. Consequently, under

the present statutory scheme, Hargrove is not entitled to the relief he seeks in

this application.6 We are thus obligated to recall the writ as improvidently

granted and deny his writ application. To do otherwise amounts to

legislating from the bench, which is not the role of the courts.

CONCLUSION

Based on the foregoing, the writ is recalled as improvidently granted,

and the writ application is denied.

WRIT RECALLED; WRIT APPLICATION DENIED.

6
Hargrove’s motion documented that, during his lengthy incarceration, he has
taken advantage of the resources available to him in prison and completed numerous self-
improvement and educational courses and programs. The lack of a current statutory
mechanism granted to the judicial branch of government to facilitate early release for
such an inmate is a matter that addresses itself to the legislature. Such matters currently
lie within the pardon and commutation powers of the executive branch of our
government.
7

HUNTER, J., dissenting.

The jurisprudence provides the trial court has no authority to amend a

hard labor sentence after the defendant has begun serving it. State v.

Wimberly, 32,984 (La. App. 2 Cir. 7/29/99), 760 So. 2d 355, citing State v.

Neville, 95-0547 (La. App. 4 Cir. 5/16/95), 655 So.2d 785, writ denied, 95-

1521 (La. 9/29/95), 660 So. 2d 851; State v. McMillon, 25,843 (La. App. 2

Cir. 3/30/94), 634 So. 2d 974.

Nevertheless, this is a non-homicide case, in which the defendant was

sentenced to serve one hundred (100) years in prison, essentially a life

sentence, whilst no meaningful opportunity for rehabilitation and reentry

into society has been provided to this defendant. As such, taxpayers will be

forced to house, feed, clothe, and provide medical care for him for the rest of

his life.

The great state of Louisiana continues to have one of the highest

incarceration rates in the world, and the cost of housing each prisoner

currently exceeds $16,000 per prisoner, per year. Hypothetically speaking,

and absent any financial deviations for inflation, if this defendant received

this sentence at fifty (50) years of age, and managed to live until he was one

hundred (100) years old, taxpayers would have footed a bill of eight hundred

thousand dollars ($800,000) for this single person.

There is no dispute the purpose of prison is, at a minimum, two-fold:

punitive and rehabilitative in nature. This effort is undertaken with the future

hope of reintegration into society rather than cultivation of taxpayer funded

“points of no return.” While the defendant’s sentence may have been

“legal,” i.e., within the discretion of the trial court, it is shockingly

disproportionate and fundamentally unfair. Furthermore, this defendant is

entitled to rehabilitation while incarcerated, presentation to the appropriate

body for reconsideration, and eventual reintegration into society as the law

intends. Consequently, I believe the writ application was appropriately

granted, and I respectfully dissent.

2